C2003/6160, Transcript of Proceedings [2003] AIRCTrans 5453 (8 December 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5525
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2003/6160
BP2003/6861

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Simon Engineering (Australia) Pty Ltd
for an order to stop or prevent industrial
action.

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act
by Simon Engineering (Australia) Pty Limited
for orders to suspend or terminate BP2003/6846

MELBOURNE

11.05 AM, WEDNESDAY, 19 NOVEMBER 2003

Continued from 7.11.03

PN32

THE COMMISSIONER: Yes, Mr Amendola.

PN33

MR AMENDOLA: If the Commission pleases. You will recall that the matter was last before you on 7 November.

PN34

THE COMMISSIONER: Yes.

PN35

MR AMENDOLA: And that is in respect of both the MW2 application and the section 127 application. At that time the parties reached an agreement, that is that the employees would return to work on the first shift on 10 November and moreover that if any further industrial action was going to take place that there would be a notice provided which I think meant another section 170MO notice. We are back before you again today, Commissioner, because what occurred was on 18 November the employees went out on strike and remain out on strike. No MO notice has been issued.

PN36

THE COMMISSIONER: So 18 November, being today?

PN37

MR AMENDOLA: Being yesterday.

PN38

THE COMMISSIONER: So they went on strike on 17 November?

PN39

MR AMENDOLA: On the 18th - there was a - I will go through some - - -

PN40

THE COMMISSIONER: Yes.

PN41

MR AMENDOLA: - - - a chronology, but they went out on strike on the 18th, Commissioner, yesterday.

PN42

THE COMMISSIONER: Sorry, today is the 19th, yes.

PN43

MR AMENDOLA: Today is the 19th.

PN44

THE COMMISSIONER: Yes.

PN45

MR AMENDOLA: If I can just, Commissioner, because what we will be doing is we will be seeking some recommendations from you, Commissioner, and the way in which I seek to proceed is just to hopefully uncontroversially provide some correspondence that has passed between the parties since we were last before you.

PN46

THE COMMISSIONER: Yes.

PN47

MR AMENDOLA: Following the hearing that took place, Commissioner, on 7 November, my client received a facsimile from the ETU setting out a list of claims in essence. And that is - and I seek to hand that to you.

PN48

THE COMMISSIONER: Right. Mr Borenstein, you have no objection to that being tendered do you?

PN49

MR BORENSTEIN: No.

PN50

THE COMMISSIONER: No.

EXHIBIT #A1 FACSIMILE FROM THE ETU SETTING OUT A LIST OF CLAIMS

PN51

MR AMENDOLA: There was a response provided by the company to that letter and it was sent to the union on 11 November 2003 by Mr Mayhew on behalf of our client.

EXHIBIT #A2 FACSIMILE FROM SIMON ENGINEERING TO MR MOONEY DATED 11/11/2003

PN52

MR AMENDOLA: As one can see, the theme that is in a sense set out in the MW2 and 127 application is a bit of issue in relation to the correspondence between the parties at that point. There was a response to that letter of 11 November, Commissioner, from the ETU to my client on 13 November and I seek to tender that.

EXHIBIT #A3 LETTER FROM ETU TO MR MAYHEW, HAZELWOOD WESTFIELD, SIMON ENGINEERING AUSTRALIA DATED 13/11/2003

PN53

THE COMMISSIONER: Yes.

PN54

MR AMENDOLA: In terms of my instructions, Commissioner, a meeting took place between members of my client and Mr Mooney and at least one of its employees who is a member of the ETU or I think is, if not the delegate defacto - the delegate in relation to work at the Hazelwood Power Station on 17 November, where there were discussions held and moreover my client provided a letter to Mr Mooney dated 17 November. I would seek to provide that to the Commission as well.

EXHIBIT #A4 LETTER FROM MR MAYHEW OF SIMON ENGINEERING AUSTRALIA TO MR MOONEY OF CEPU DATED 17/11/2003

PN55

MR AMENDOLA: In terms of that letter, Commissioner, you will see that again there are certainly issues between the parties in relation to what is now being sought by the ETU and my client puts those matters squarely at issue in the paragraphs numbered 1 to 6, but moreover, in the penultimate paragraph, there is a suggestion that was put as to how to deal with this matter going forward in an orderly fashion. And I ask, Commissioner, if you could just have a look at A4 again.

PN56

THE COMMISSIONER: Yes.

PN57

MR AMENDOLA: The suggestion that was put is - from my client:

PN58

We would suggest that the most appropriate way to deal with this matter and any negotiations which may follow is, in the circumstances, to use the good offices of the Commission. Accordingly without conceding in any way that there is a validly initiated bargaining period, the company reserves its right on this. We would propose to make application to the Commission under section 170NA for its assistance in conciliation.

PN59

Now in terms of my instructions, that was not something that was of great issue between the ETU and my client and my client was then proposing to make application to the Commission when the following day, 18 November, my client was advised by Mr Mooney that the employees, members of the CEPU, had decided to go home and would stay out until the issues between the parties are fixed.

PN60

THE COMMISSIONER: Yes, is that documented?

PN61

MR AMENDOLA: No, no, Commissioner, that is not the subject of - it would be the subject of evidence if necessary, but it may be that it is not necessary. I think it is agreed between the parties that the employees are not there and that they have not been there since yesterday.

PN62

THE COMMISSIONER: And these are the people at Hazelwood?

PN63

MR AMENDOLA: That is correct.

PN64

THE COMMISSIONER: At the Hazelwood mine, is that right?

PN65

MR AMENDOLA: That is correct, who are employees of my client, who are members or eligible to be members of the CEPU. That is correct, Commissioner.

PN66

THE COMMISSIONER: Yes, so your client was advised that they were going home and not returning until what?

PN67

MR AMENDOLA: Well the quote that we have and I have to say I haven't put this to my friend, so I don't ask him to agree to it, but the quote that we have is in quotation marks "Until this is fixed" close quotation marks.

PN68

THE COMMISSIONER: Yes, what is the relevant dispute resolution provision in regard to Hazelwood?

PN69

MR AMENDOLA: Well, one of - - -

PN70

THE COMMISSIONER: If you have that there, you might tender it as well so that I have got the material on file.

PN71

MR AMENDOLA: Well in terms of an instrument that at least arguably is applicable in part, it would be the Simon-Carves Electrical Services Enterprise Agreement. There are a whole series of agreement whether they be instruments or otherwise that might be at issue if we ended up in a big brawl about it, but - - -

PN72

THE COMMISSIONER: I want to know what you are saying is the relevant agreement and what is the relevant dispute resolution provision and - - -

PN73

MR AMENDOLA: It is.

PN74

THE COMMISSIONER: Mr Borenstein will have his day in court if there is going to be a day in court.

PN75

MR AMENDOLA: Yes, it is the - we say that in terms of the certified agreement, it is the Simon-Carves Electrical Services Enterprise Agreement.

PN76

THE COMMISSIONER: 2000 - - -

PN77

MR AMENDOLA: And 2 - 2000 to 2003. Its nominal expiry date has passed but it is still in operation.

PN78

THE COMMISSIONER: Yes.

PN79

MR AMENDOLA: Although we understand that there will be an application shortly to certify an agreement to replace this agreement.

PN80

THE COMMISSIONER: That is AG - the agreement number?

PN81

MR AMENDOLA: It is the decision which certified it is - - -

PN82

THE COMMISSIONER: There is not an AG number up the top?

PN83

MR AMENDOLA: 32169 perhaps. There is a - S2990 is the decision of Senior Deputy President Williams certifying it.

PN84

THE COMMISSIONER: Let me just have a look, thanks. So the print number is S2990. And what do you say is the relevant dispute resolution provision of that?

PN85

MR AMENDOLA: It is on page 16, clause 13, 13.1.

PN86

THE COMMISSIONER: And 13.1.3 requires:

PN87

The matters be submitted to the Commission.

PN88

And 13.1.4 says:

PN89

That while the above procedure has been followed, work shall continue normally.

PN90

MR AMENDOLA: In this instance, Commissioner, the other salient point is that there is a bargaining notice that has been - there is a bargaining period that has been sought to be initiated. We take issue with that but it has been sought to be initiated and previously there was an MO notice that indicated industrial action was going to occur but in this instance, Commissioner, there is no MO notice that has preceded the taking of industrial action.

PN91

THE COMMISSIONER: Yes, all right.

PN92

MR AMENDOLA: The way in which we would seek to proceed today, Commissioner, is to seek a recommendation that the employees return to work and that they do not take industrial action whilst discussions between the parties take place as indicated in my client's letter of 17 November.

PN93

THE COMMISSIONER: Yes.

PN94

MR AMENDOLA: I might add, as you can tell - - -

PN95

THE COMMISSIONER: About - to be frank, I mean, perhaps if we provide a finite period of time over which those discussions might take place it might be useful and - - -

PN96

MR AMENDOLA: Commissioner, that is so and it would be something that we could certainly talk. We think that that may be best facilitated off the record in terms of discussions as to when that would take place.

PN97

THE COMMISSIONER: I will hear from Mr Borenstein when you have finished.

PN98

MR AMENDOLA: Yes.

PN99

THE COMMISSIONER: Could I just say while I have quite a heavy day tomorrow, I could list this matter again for 1 o'clock tomorrow and then perhaps actually provide other times for you if you want to - as you have referred to in that letter, want to take advantage of the assistance of the Commission. I could provide other times next week, not on Monday when I have a Full Bench in Sydney.

PN100

MR AMENDOLA: Commissioner, from our perspective that would be in order. The idea of trying to progress this matter. The only - there are just a couple of points I want to put on the record and that is that as one can see from the correspondence there are assertions put as to what is sought and my client has indicated as to what has taken place so it certainly considers that discussions are appropriate. Whether it concedes what is put forward or would want to concede what is sought is another question, but it certainly would seek to discuss those matters and ventilate them using the good offices of the Commission.

PN101

I think it is important to note that discussion negotiation doesn't necessarily mean concession from my client's perspective because from my client's perspective they would say that there was an agreement and in a practical and real sense it has acted to its prejudice by paying various people certain things and certain allowances. I understand that there may well be issues between the parties about that but it is important that we put that on the record, that discussions mean discussions, not necessarily concessions or capitulation from my client's perspective.

PN102

THE COMMISSIONER: Yes, just on another point, noting that you say this agreement continue, the 2000-2003 continues to be in force, but did you say there is another agreement before the Commission or -

PN103

MR AMENDOLA: My understanding is that there is going to be an application for certification of a - - -

PN104

THE COMMISSIONER: There hasn't been an application yet.

PN105

MR AMENDOLA: That is so, Commissioner, not yet.

PN106

THE COMMISSIONER: Yes, yes, all right.

PN107

MR AMENDOLA: Moreover, my friend has indicated that they may well initiate a further bargaining period which I presume would either supersede the current bargaining period that - - -

PN108

THE COMMISSIONER: Yes.

PN109

MR AMENDOLA: - - - we have issues with, but that of course would be relevant, I suppose, in terms of what the Act would permit subsequently.

PN110

THE COMMISSIONER: Yes, that is right.

PN111

MR AMENDOLA: I concede that. But in terms of the recommendation that we seek as to where we are now - - -

PN112

THE COMMISSIONER: Yes.

PN113

MR AMENDOLA: - - - we consider that what has taken place is, to put it mildly, most unfortunate, not something that - we don't want a revolving door of coming in and out of the Commission on these sorts of things, Commissioner, that is what it comes down to. It is totally unnecessary and which is why we would strongly seek a recommendation that the employees return to work. Now there is an issue between the parties as to whether or not such a recommendation should extend to the CEPU because the CEPU, as I understand it, would say that what took place on the 18th was contrary to what they recommended to the employees. That is what they say. We may have different views about that, that is what they say nevertheless.

PN114

THE COMMISSIONER: Well it is only a recommendation you are talking about.

PN115

MR AMENDOLA: Indeed, but I mean from our perspective, I think we would seek that the recommendation extend to the organisation as well as the employees. We haven't tendered, but we could do if it was ever necessary, correspondence that my client has sent to the employees to keep them advised of the discussions or the state of play with the ETU, so they were well aware of what was going on when they decided to walk - they walked on the 18th.

PN116

THE COMMISSIONER: How many employees are involved?

PN117

MR AMENDOLA: 21 or so, Commissioner.

PN118

THE COMMISSIONER: And what effect is it having on the operations?

PN119

MR AMENDOLA: There is meant to be a handover and a commissioning, I think, commencing on 30 November and every day, and now it is three - this is three days lost through industrial action, has an effect because if we - - -

PN120

THE COMMISSIONER: But what immediate effect does it have? Well what is the handover day?

PN121

MR AMENDOLA: 30 November.

PN122

THE COMMISSIONER: The 30th is very, very close, yes.

PN123

MR AMENDOLA: Yes, and, Commissioner, I mean I appreciate this is from the bar table but what is involved is basically disconnecting a number of conveyors from, I think, the south west field of the mine, the south east field of the mine so that - to the west field of the mine, so that coal can be conveyed from the west field, from the south east and so it has all been programmed on a basis that coal can continually be fed to the power station and so when any delay in relation to this does put that at some significant risk. I don't - and in that sense, it is quite important. Every stoppage has an effect in terms of the commissioning and it also - - -

PN124

THE COMMISSIONER: But this is about an operation which is to start up, rather than has started up, is that right?

PN125

MR AMENDOLA: Well, coal is being still fed from various parts of the mine and I think the program was designed so that there would be - so that the south east field is worked out until the west field conveyors are set up to allow it to happen smoothly in transition.

PN126

THE COMMISSIONER: Right, okay.

PN127

MR AMENDOLA: So - and that is why - and so when these stoppages occur and one can't continue with the work that is necessary, it does in fact detrimentally effect potentially the reliability of supply of coal to the power station.

PN128

THE COMMISSIONER: Yes, all right. Look, I note what you have said in regard to that. If the matter is to proceed as a 127 application, I would want to hear further - I would want it more clear, actually, about - - -

PN129

MR AMENDOLA: You would want to hear evidence, Commissioner, and we understand that and we, you know, we had people here to lead evidence if it was necessary - - -

PN130

THE COMMISSIONER: Yes.

PN131

MR AMENDOLA: - - - but it may be that in terms of the discussions that I have had with my friend - - -

PN132

THE COMMISSIONER: Yes.

PN133

MR AMENDOLA: - - - and if the Commission is predisposed to make some recommendations that it is not necessary to proceed on that basis at this point.

PN134

THE COMMISSIONER: Yes, all right, fine. That is all Mr Amendola?

PN135

MR AMENDOLA: It is, Commissioner.

PN136

THE COMMISSIONER: Thank you, yes, yes, Mr Borenstein?

PN137

MR BORENSTEIN: Commissioner, I don't wish to say too much in respect to this. I am not going to make any submissions regarding the recommendations sought. Maybe myself and my friend can draft some terms which we can submit to the Commission.

PN138

THE COMMISSIONER: I think that is a very good idea. I would prefer you to do that rather than - and I will have a look at them and I will decide if I actually consider - - -

PN139

MR BORENSTEIN: Yes, and - - -

PN140

THE COMMISSIONER: - - - that they are not appropriate or that there is something more that I might suggest you have a look at.

PN141

MR BORENSTEIN: And in respect of the non taking of industrial action, we would seek that be limited to the non taking of unprotected industrial action.

PN142

THE COMMISSIONER: Yes.

PN143

MR BORENSTEIN: And the recommendation.

PN144

THE COMMISSIONER: Well I note that is a matter, if you like, in dispute so you are reserving - - -

PN145

MR BORENSTEIN: And I would just like to - - -

PN146

THE COMMISSIONER: You are reserving your position about that. I might say, Mr Borenstein, I am inclined to think the recommendations should relate to the CEPU as well as it members, noting that they are recommendations.

PN147

MR BORENSTEIN: If the Commission pleases.

PN148

THE COMMISSIONER: Yes.

PN149

MR BORENSTEIN: I would just like to say that the union and the members reserve their right and it is done without any admission of liability.

PN150

THE COMMISSIONER: Absolutely, yes absolutely, I fully understand that. What is your view with regard to the Commission making itself available both tomorrow and dates next week to be of assistance?

PN151

MR BORENSTEIN: I think we would be happy with that. I will have to contact the organiser.

PN152

THE COMMISSIONER: Yes, all right.

PN153

MR BORENSTEIN: I am pretty sure he is available tomorrow though.

PN154

THE COMMISSIONER: Yes, look, what I would say is I actually think that the matter should be listed for 1 o'clock tomorrow in the event that if there is not a return to work in accordance with any recommendation that a further hearing of the application can be dealt with. If I have got a finite period of time but I wouldn't like to leave it hanging for too long.

PN155

MR BORENSTEIN: I suppose the only problem - I suppose the practical realities of it is that we need to try and contact all of these people.

PN156

THE COMMISSIONER: Yes, indeed.

PN157

MR BORENSTEIN: Hopefully that can be done.

PN158

THE COMMISSIONER: Yes.

PN159

MR BORENSTEIN: But I haven't been able to contact the organiser to see what the practicalities of that are.

PN160

THE COMMISSIONER: Yes, all right.

PN161

MR BORENSTEIN: If it can be done, it can be done.

PN162

THE COMMISSIONER: Well, you have got the rest of the day to do that.

PN163

MR BORENSTEIN: That is right.

PN164

THE COMMISSIONER: All right.

PN165

MR BORENSTEIN: And in respect of tomorrow, the negotiation - - -

PN166

THE COMMISSIONER: I am looking at listing the matter for 1 o'clock for report back and possibly further hearing or conciliation.

PN167

MR BORENSTEIN: Maybe the organiser might not be able to make it down from the Valley. If that is the case maybe he could do it - he could join in by phone if those facilities could be made available.

PN168

THE COMMISSIONER: Or we might be able to line up some kind of video conference. Whereabouts is he? How far away - - -

PN169

MR BORENSTEIN: Morwell.

PN170

THE COMMISSIONER: He is in Morwell. Morwell is not that far away, is it? Morwell is only a couple of hours away. I have driven to Morwell.

PN171

MR BORENSTEIN: It depends if he is in the process of organising the people to return to work tomorrow morning.

PN172

THE COMMISSIONER: Yes, yes, sure.

PN173

MR BORENSTEIN: I don't know what that is going to - but - - -

PN174

THE COMMISSIONER: Yes, but meetings usually take place first thing in the morning and there should be plenty of time to get down by 1 o'clock.

PN175

MR BORENSTEIN: Well, if he can contact everyone today.

PN176

THE COMMISSIONER: Well, look I mean the other thing is I can offer you 4 - I can also offer you 4 o'clock tomorrow afternoon. I was offering 1 o'clock as being a more convenient - - -

PN177

MR BORENSTEIN: Let us try 1 o'clock, I think.

PN178

THE COMMISSIONER: Yes, all right, okay, fine. All right, Mr Amendola, on that basis I think I should adjourn, leave you and Mr Borenstein to co-operate together in a little drafting exercise. My associate will come and get what you have done and I will have a look at it. If I have got suggestions to make, I will incorporate them and let you have a look at it but my associate will assist you with - just hand write something and my associate will prepare it.

PN179

MR AMENDOLA: Sure.

PN180

THE COMMISSIONER: Good, thank you very much. I now adjourn.

ADJOURNED UNTIL THURSDAY, 20 NOVEMBER 2003 [11.28am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 FACSIMILE FROM THE ETU SETTING OUT A LIST OF CLAIMS PN51
EXHIBIT #A2 FACSIMILE FROM SIMON ENGINEERING TO MR MOONEY DATED 11/11/2003 PN52
EXHIBIT #A3 LETTER FROM ETU TO MR MAYHEW, HAZELWOOD WESTFIELD, SIMON ENGINEERING AUSTRALIA DATED 13/11/2003 PN53
EXHIBIT #A4 LETTER FROM MR MAYHEW OF SIMON ENGINEERING AUSTRALIA TO MR MOONEY OF CEPU DATED 17/11/2003 PN55